Small Claims, Big Problems: How to Resolve Security Deposit Disputes

VOLUME 7R

By Cameron Austin

After the move is complete and keys are turned in, tenants wait anxiously for their landlord to return their security deposit. But what happens when a landlord withholds a security deposit? And what legal rights does a tenant have to get that money back?

According to Florida lawyer Sean Lopez with the Lopez Law Firm, it’s increasingly common for landlords to withhold large portions of the security deposit because of the strenuous and competitive nature of the rental over the last few years. That doesn’t mean it’s okay, though, Lopez said.

“The statutes are very clear,” said Lopez. “Normal wear and tear are accepted. That means to return the home in likewise or better condition from when you moved in, absent normal wear and tear. If you live in a home, you’re going to use it. Things will deteriorate just from living in the house. But that doesn’t mean a landlord can keep an abnormally large part of the security deposit.”

While some leases may specifically outline what they define as “normal wear and tear," ultimately, each state has a different definition of what is considered wear and tear from a legal perspective.

In Texas, the law is specific, with Section 92.104 defining it as “deterioration that results from the intended use of a dwelling.”

The Austin Tenants Council explains more specifically that things like nail holes in the walls from pictures or paintings are considered normal wear and tear, whereas “damage caused by negligence, carelessness, accidents, or abuse of the premises by the tenant or the tenant’s guests are not normal wear and tear.”

In Florida, the law doesn’t explicitly spell out what is defined as normal wear and tear, leaving it open for the landlord and tenant to interpret. If the lease doesn’t define normal wear and tear, then Florida common law will control how a dispute will be resolved, according to the Florida law firm of Sackrin & Tolchinsky.

From there, a Florida landlord has just 15 days to send back the entirety of the security deposit or 30 days to send back a portion or none of it, according to Florida Statute 83.49(3)(a). If a landlord decides to withhold it, there must be a written explanation. Once tenants receive that notice, they have 15 days to respond and explain why the withholding is unwarranted. If they miss that 15-day window, tenants may forfeit their ability to get the deposit back.

In Texas, the law states that a landlord must refund a security deposit or provide an explanation for withholding it to the tenant within 30 days of surrendering the premises. One important exception: For a landlord to be held responsible for returning the security deposit, a tenant must provide a written forwarding address before moving out, as outlined in Section 92.107.

To protect tenants from unnecessary security deposit withholdings, Lopez suggests two things:

Take a video of the property on the move-out day
Try to be present with the landlord during the final walk-through

This can help mediate any issues directly with the landlord and provide video proof of the home’s final condition.

Tenants should closely read their lease and have a signed, fully executed copy on hand. Landlords can outline in the lease agreement what nonrefundable charges might apply, such as pet fees, technician charges or even taxes.

"If a landlord is a decent landlord, they'll usually work with the tenant,” said Lopez. "However, if you get no response or the landlord disagrees, then you’re out of mediation options at that point.”

From Security Deposit Dispute to Small Claims Court

One option for unsatisfied tenants is to file a suit in small claims court. This section of the judicial branch is designed for disputes involving money where damages don’t exceed $20,000 in Texas or $8,000 in Florida. Since these suits are often more informal than a full civil suit, attorneys usually aren’t required.

The first step in filing a small claims case in Texas and Florida is filing a petition or Statement of Claim with the court clerk. This includes submitting a filing fee ranging from $54 to $300, depending on the value of damages sought.

From there, the defendant will be notified of the case against them, and a pre-trial hearing will be scheduled. At the pre-trial hearing, a justice of the peace will determine if there is enough cause to move forward with mediation. If the parties can’t reach an agreement after mediation, the case may move to a trial.

While small claims court is designed for the layperson, according to Lopez, “If one party has an attorney, you should as well.”

Otherwise, tenants could be at a disadvantage—even if they’re only in small claims court.

Ultimately, Lopez says communication is key. To avoid surprise withholdings, reviewing the lease and understanding the specific rights outlined in the state law can help tenants understand their options regarding their security deposit.

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